ACD v Esd - [2010] QDC 500

DISTRICT COURT OF QUEENSLAND

CITATION: ACD v ESD [2010] QDC 500
PARTIES: ACD

Applicant

V
ESD

Respondent

FILE NO/S: D10 of 2010
DIVISION: Civil
PROCEEDING: Application for Criminal Compensation
ORIGINATING
COURT: Ipswich
DELIVERED ON: 21 December 2010
DELIVERED AT: Ipswich
HEARING DATE: 19 November 2010
JUDGE: Bradley DCJ
ORDER: I order that the respondent pay to the applicant the
sum of $55,000 by way of criminal compensation and
that the respondent pay the applicant’s costs of this
application on a standard basis.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the deceased respondent was convicted of 10 counts of indecently dealing with the applicant – where the offending took place between 1973 and 1985 – where the now repealed Chapter 65A Criminal Code Act 1899 therefore applies to criminal compensation for the offences committed – where the applicant suffers from post traumatic stress disorder to a severe degree as a result of the events – whether the 1984 amendment of the Criminal Code Act 1899 should be applied retrospectively to those offences committed before the amendment – whether the offences arose “out of the one course of conduct or closely related courses of conduct”.
Chong v Chong [1999] QCA 314
P v B [2004] QDC 149
R v Boughton ex parte Holt Unreported District Court No
124 of 1993 13 August 1993
R v Jones; ex parte McClintock [1996] 1 Qd R 524
Criminal Code Act 1899 (Qld)
Criminal Offence Victims Act 1995 (Qld)
Victims of Crime Assistance Act 2009 (Qld)
Succession Act 1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
REPRESENTATIVES: F Muirhead, solicitor of Legal Aid Queensland for the
applicant.
No appearance for the respondent.

On 1 December 2006 in the District Court at Ipswich, ESD pleaded guilty to 10 counts of indecently dealing with the applicant, his daughter. On 23 February 2007 ESD was convicted and sentenced to five years imprisonment for 5 counts, suspended after serving 18 months for an operational period of five years; and to three years imprisonment for the other 5 counts, suspended after serving 18 months with an operational period of five years. The offences were committed between 31 January 1973 and 31 December 1985.
The applicant now seeks an order for compensation for the injuries suffered by her because of the offences pursuant to the now repealed Chapter 65A of the Criminal Code Act 1899 (“the Code”) and specifically section 663B of the Code.
Chapter 65A was repealed by the Criminal Offence Victims Act 1995 (“COVA”), which commenced on 18 December 1995. Section 46 of COVA provides that Chapter 65A of the Code continues to apply to “injuries suffered by anyone because of an act done before the commencement of the Act”. Claims pursuant to the Code must be made within six years of the date of conviction. This claim was filed on 18 January 2010 and is therefore within time.
COVA was repealed by the Victims of Crime Assistance Act 2009, which commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACD v Esd

Details

AGLC: ACD v ESD [2010] QDC 500
Case: [2010] QDC 500
Decision Date: 21/12/2010

CaseChat Overview and Summary

The case of ACD v Esd involved a dispute over criminal injuries compensation in Queensland. The applicant, ACD, sought compensation from the deceased respondent, Esd, who had been convicted of ten counts of indecently dealing with the applicant between 1973 and 1985. The repealed Chapter 65A of the Criminal Code Act 1899 applied to criminal compensation for the offences committed during this period. ACD claimed to suffer from severe post-traumatic stress disorder as a result of the events. The central issue was whether the 1984 amendment of the Criminal Code Act 1899 should be applied retrospectively to the offences committed before the amendment, and whether the offences arose "out of the one course of conduct or closely related courses of conduct".

The court considered the applicability of the 1984 amendment to the offences committed prior to its enactment. It examined the legislative history and the intent behind the amendment to determine if it should be applied retrospectively. The court also assessed whether the offences were part of a single course of conduct or closely related courses of conduct. It concluded that the 1984 amendment should not be applied retrospectively and that the offences were part of closely related courses of conduct. The court found that ACD was entitled to compensation under the repealed Chapter 65A of the Criminal Code Act 1899.

The court ordered that Esd pay ACD the sum of $55,000 by way of criminal compensation and that Esd pay ACD's costs of the application on a standard basis.

Orders

Orders of the court

I order that the respondent pay to the applicant the

sum of $55,000 by way of criminal compensation and

that the respondent pay the applicant’s costs of this

application on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

FILE NO/S:	D10 of 2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING
COURT:	Ipswich
DELIVERED ON:	21 December 2010
DELIVERED AT:	Ipswich
HEARING DATE:	19 November 2010
JUDGE:	Bradley DCJ
ORDER:	I order that the respondent pay to the applicant the sum of $55,000 by way of criminal compensation and that the respondent pay the applicant’s costs of this application on a standard basis.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the deceased respondent was convicted of 10 counts of indecently dealing with the applicant – where the offending took place between 1973 and 1985 – where the now repealed Chapter 65A Criminal Code Act 1899 therefore applies to criminal compensation for the offences committed – where the applicant suffers from post traumatic stress disorder to a severe degree as a result of the events – whether the 1984 amendment of the Criminal Code Act 1899 should be applied retrospectively to those offences committed before the amendment – whether the offences arose “out of the one course of conduct or closely related courses of conduct”.
Chong v Chong [1999] QCA 314 P v B [2004] QDC 149 R v Boughton ex parte Holt Unreported District Court No 124 of 1993 13 August 1993 R v Jones; ex parte McClintock [1996] 1 Qd R 524 Criminal Code Act 1899 (Qld) Criminal Offence Victims Act 1995 (Qld) Victims of Crime Assistance Act 2009 (Qld) Succession Act 1981 (Qld) Uniform Civil Procedure Rules 1999 (Qld)
REPRESENTATIVES:	F Muirhead, solicitor of Legal Aid Queensland for the applicant.
No appearance for the respondent.